Livingston v. Spero — 18 Misc. 252

Majority

p. 252

Meyer W. Livingston, Respondent, v. Louis Spero, Appellant. Action No. 2.

(Supreme Court; Appellate Term,

October, 1896.)

Headnote

Judgment — Stare decisis.

Where the assignee of an attorney having a claim for services, brings an action, and a counterclaim is interposed upon the ground that the attorney was negligent, and the court has considered the question of the attorney’s negligence in a similar action- between the two parties, its decision upon that question, made in the former ease, will be followed in the latter.

Appeal by defendant from judgment of Sixth District Court.

p. 253

Oppenheim & Severance (W. F. Severance, of counsel), for appellant.

L. Bronner (M. L. Erlanger, of counsel), for respondent.

The action is by the plaintiff as assignee of Mitchell L. Erlanger, an attorney-at-law, to recover $99 for professional services rendered to the defendant in the following matters: ’ $75 for services rendered in .the case of Schultz against Spero; $25 for services growing out of a report made by Dun’s agency concerning the defendant; and $5 -concerning a satisfaction piece.

Thé answer was a general denial, with a plea of payment, and counterclaim of $250, by reason of the gross negligence of the plaintiff’s assignor as an attorney and counselor, by which the defendant sustained damages in that sum.

The justice found for the plaintiff and awarded him judgment for $75, disallowing the defendant’s counterclaim and the second and third items of plaintiff’s bill.

The plaintiff proved the rendition of the services in the Schultz case at the request of the defendant, and that they were reasonably worth $75, the sum for which the justice rendered judgment.

The claim that the services were rendered gratuitously or had in any manner been paid for entirely failed.

The counterclaim for negligence- grows out of the same matters which have -been gone over in the opinion filed this day in suit No. 1 (ante, p. 243) between the same parties, and need not be again discussed. This action like that is by an assignee, and substantially the same rulings were made here as there, and all these are effectually disposed of by the. opinion in that case.

We find no error, and the judgment must be affirmed, with costs.

Daly, P. J., and Bischokf, J., concur.

Judgment affirmed, with costs.